John Jensen v. Lincoln County ( 2014 )

FILED
JUNE 17,2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JOHN JENSEN, on behalf of himself and ) No. 31668-8-111
all others similarly situated, )
)
Appellant, ) UNPUBLISHED OPINION
)
v. )
)
LINCOLN COUNTY, a political )
subdivision of the State of Washington, )
)
Respondent. )
KORSMO, J. -John Jensen appeals the dismissal at summary judgment of his claim
for wages while traveling to his varying jobsites throughout the environs of Lincoln
County. We agree with the trial court that the collective bargaining agreement (CBA)
does not compel him to drive from the county seat to the job sites and, therefore, affrnn.
FACTS
Lincoln County owns and operates a mobile rock crusher. The crusher usually
remains set up in a single location for a few months before the crew moves it to another
site. This location becomes the crew's work premises for the next few months. No
No. 31668-8-III
Jensen v. Lincoln County
matter how far away the crusher is located, the crew's eight hour work day does not
begin until they reach the crusher. The CBA explicitly provides that the eight hour work
day "does not include travel time to and from the work site." Clerk's Papers at 135.
However, the CBA does require the county to furnish the crew with transportation to and
from the work site. The crusher foreman is paid a $150 monthly travel allowance.
To fulfill the transportation requirement, the county provides the crew with a sport
utility vehicle (SUV). Every morning, Mr. Jensen and other members of the crew start
their day at the county shop to pick up the vehicle. While at the shop, Mr. Jensen and the
other crew members do not perform any required work. According to Mr. Jensen, he
normally visits with the mechanics at the shop and gathers parts for the crusher on an as
needed basis. Once all the crew members are present, they carpool to the current crusher
site. During that commute, the crew members also do not perform any work; instead,
they talk about sports, politics, and other non-work related topics.
Although the county provides the crew with an SUV, some crew members still
drive their personal vehicles to the crusher site. The county does not have any policies or
rules requiring the crew to use the SUV or to meet at the shop in the mornings.
The county also does not have any formal policies or rules prescribing how the
crew uses the SUV. Informally, the county prohibits the crew from using the SUV for
personal towing, from consuming alcohol prior to operating the SUV, and from
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No.31668-8-II1
Jensen v. Lincoln County
transporting non-employees. The only formal policy applicable to the vehicle is the CBA
provision for equipment assigned to county employees. It makes the crew members
responsible for the SUV's maintenance, which means that the crew has to notify the
county mechanics when work needs to be done.
Mr. Jensen sued Lincoln County for the unpaid time spent traveling between the
shop and the crusher site. At that time, he had worked on the crusher crew for
approximately 6 years, and had worked for the county for approximately 14 years. The
parties brought cross-motions for summary judgment on the question of liability. The
superior court granted the county's motion for summary judgment and denied Mr.
Jensen's cross-motion. Mr. Jensen then timely appealed to this court.
ANALYSIS
This court reviews a summary judgment ruling de novo, performing the same
inquiry as the trial court. Lybbert v. Grant County, 141 Wn.2d 29,34, 1 P.3d 1124
(2000). The facts, and all reasonable inferences to be drawn from them, are viewed in the
light most favorable to the nonmoving party. Id. If there is no genuine issue of material
fact, summary judgment will be granted if the moving party is entitled to judgment as a
matter of law. Id. This court may also determine a question of fact as a matter of law
when reasonable minds can reach only one conclusion. Miller v. Likins, 109 Wash. App.
140, 144,34 P.3d 835 (2001).
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No. 31668-8-111
Jensen v. Lincoln County
Here, the parties ask us to decide whether the time that Mr. Jensen spends
traveling between the county shop and the crushing site is compensable under
Washington's Minimum Wage Act, chapter 49.46 RCW. The answer to that question
depends on whether that time falls within the meaning of "hours worked" as defined by
the Department of Labor and Industries (DLI). Stevens v. Brink's Home Security, Inc.,
162 Wash. 2d 42, 47, 169 P.3d 473 (2007). DLI defines "hours worked" as "all hours
during which the employee is authorized or required by the employer to be on duty on the
employer's premises or at a prescribed work place." WAC 296-126-002(8).
In Stevens, a group of employees sued Brink's Home Security, Inc., seeking wages
for the time they spent driving their employer-provided trucks to and from home; the
employees already received compensation for the time spent driving between work sites.
In siding with the workers, the court highlighted a number of facts that it found relevant
to the inquiry under WAC 296-126-002(8). First, the drivers took the trucks home with
them every day and infrequently went to a Brink's office. Second, the workers received
their assignments from home and were always on call while driving. Third, Brink's had
detailed policies limiting how employees used the trucks, which included prohibitions on
running personal errands in the trucks. These factors weighed in favor of classifying the
time spent driving to the first call and driving home from the last call as time spent "on
duty." Stevens, 162 Wash. 2d at 45-49.
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No.3l668-8-III
Jensen v. Lincoln County
The next question was whether the trucks could be classified as the "employer's
premises" or the employees' "prescribed work place." The court found in favor of the
workers on this factor because driving the trucks was an integral part of Brink's'
business. The company's business model relied on technicians going to people's houses
to do installations and servicing. Workers also had to carry all necessary tools and
equipment in the trucks. Workers only reported to a physical corporate office once a
week to refill supplies. Workers also had to do their paperwork in the truck or at the
customer's home. Formal policies required the workers to keep the trucks clean and
serviced. Id. at 49. The Brink's vehicles essentially were mobile offices for the
employees.
Mr. Jensen understandably analogizes his situation to Stevens. However, the facts
of this case do not support classifYing the time spent driving to the crusher site as time
spent "on duty," nor do the facts support classifYing the county provided SUV as Mr.
Jensen's "prescribed place of work." Unlike Stevens, Lincoln County does not have any
formal policies limiting Mr. Jensen's use of the SUV. In Stevens, the employees were
always on call and could not use the trucks for personal errands. Mr. Jensen has no such
limitations. Mr. Jensen also has a prescribed place of work-the crusher site-where he
works for eight hours a day. In contrast, the employees in Stevens worked out of their
trucks and rarely set foot on the employer's physical premises.
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Jensen v. Lincoln County
Driving the SUV also provides no benefit to the county. In Stevens, the employer
provided vehicles benefited the employer because the employees could not work without
specially outfitted vehicles capable of carrying all necessary tools and equipment.
Lincoln County, however, has no reason to care how its crews get to the crusher site and
only provides the SUV as a bargained for benefit. Mr. Jensen argues that driving the
SUV benefits the county because he uses it to transport necessary parts between the
county shop and the crusher site. However, his deposition testimony showed that no one
required him to transport the parts and he performed this function infrequently.
Accordingly, the SUV in this case primarily benefits the employees.
Instead of Stevens, we find that the facts of this case align more closely with
Anderson v. Dep't o/Social & Health Servs., 115 Wash. App. 452, 63 P.3d 134 (2003). In
Anderson, a group of DSHS employees sought compensation for the time they spent
riding to and from McNeil Island on an employer provided ferry. The claims failed
because the employees were not "on duty" during those ferry rides. During that time, the
workers "engage [d] in various personal activities, such as reading, conversing, knitting,
playing cards, playing hand-held video games, listening to CD (compact disc) players and
radios, and napping." Id. at 454. Although the crew members in this case do not perform
as wide of an array of personal activities while going to and from the crusher site, they
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Jensen v. Lincoln County
still perform no work during the commute. Instead, the crew members spend the time
talking about sports, politics, and other topics of personal conversation.
Based on the foregoing facts and discussion, Mr. Jensen is not "on duty" during
his daily commute, and that the county provided SUV is not part of Mr. Jensen's
"prescribed place of work." It simply does not function as the equivalent of a mobile
office or job site. Accordingly, the time that Mr. Jensen spends commuting does not fall
within the definition of "hours worked."
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Brown, J.
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Siddoway, C.J.
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